Amanda E. Gray Immigration Law Blog on Lawyers.com

Second Circuit Remands to BIA to Consider Hardship to Petitioner's Family

Wednesday, September 28, 2011 by Amanda E. Gray

On September 27, 2011, Amanda E. Gray of the New York City immigration law firm, Bretz & Coven, LLP, won a case in the United States Court of Appeals for the Second Circuit, Gonzales Bordonave v. Holder, Docket Number 10-4906, September 27, 2011 (unpublished) holding that the Board of Immigration Appeals erred in reversing the Immigration Judge’s grant of adjustment of status because it failed to consider hardship to Mr. Gonzales’s family if Mr. Gonzales were deported, a factor that the Immigration Judge had considered and which the Board has in extensive case law required be considered in adjustment of status cases. The Court held that given the closeness of this case, the BIA’s failure to consider and weigh this factor of hardship constituted “fact-finding which is flawed by an error of law,” Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009) and that by omitting mention of this important factor, the BIA erred in applying the incorrect standard of review to the Immigration Judge’s finding. This is a big win because the Court found it had jurisdiction to consider the petition for review even though it was an appeal of the Board’s discretionary decision reversing the Immigration Judge. This decision is also persuasive authority that the Board must consider all factors examined by an Immigration Judge in granting a discretionary relief application that the Board has, in its precedent decisions, required to be considered. Moreover, this case helps establish that the Board must follow its own precedent and use the correct standard of review even in cases involving sex-related convictions, such as misdemeanor sexual misconduct as in this case.

This article was provided by Bretz & Coven, which practices immigration law in New York City and throughout the United States. For information and comment contact Senior Partner, Kerry Bretz at kwbretz@bretzlaw.com.

Posted at 12:20 PM

Topic: Immigration